Jamie Sarkonak: Liberals put bilingualism before justice on Supreme Court

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Say hello to Justice Mary Moreau, your newest judge on the Supreme Court of Canada. After a tough competition with exactly one other candidate in the entire western half of Canada, she will now sit on the bench to decide the limits of free speech, assisted suicide, criminal punishment and more. The most critical strength she brings to the table is not her judicial skill, but her language ability. She can speak French.

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This isn’t necessarily to slight Moreau. As the former chief justice of the Alberta Court of King’s Bench whose judicial career spans back to 1994, she has a good amount of experience. Moreau’s resume is much stronger than that of the previous appointment, Michelle O’Bonsawin, who was only made a judge in 2017 and might have been a better candidate 10 years from now.

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That said, Moreau didn’t exactly have to compete in what should be an incredibly competitive ring.

It’s now language, rather than legal skill, that is the primary determinant of whether a person is eligible to interpret contentious law for the entire country. This is thanks to a Liberal amendment to the Official Languages Act, which was passed earlier this year. Now, every appointment to the Supreme Court must be “functionally bilingual,” which means being bilingual enough to follow the nuances of complex legal issues.

Why make such a restrictive change that will prevent the vast majority of Canadian lawyers and judges from ever sitting on the country’s highest court? In a country where oral and written translation, for much of our history, have successfully bridged linguistic gaps? In a country where technological improvements have made cross-language communication easier than ever? Inclusion, obviously.

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The great minds in charge decided that it is more important for high-level appeals to run without an interpreter, than to be judged by jurists who can safely be said to be the best of the bunch.

Liberals will tell Parliament that the bilingualism mandate is a matter of ensuring litigants “see themselves reflected” in court. Other times, Liberal officials have endorsed the message that it’s about having a bench that can communicate and reason in either language. In one of the previous, unsuccessful attempts by the Liberals to restrict a similar language restriction, Stéphane Dion said it was about giving “French-speaking Canadians the assurance that they will be understood by the nine most important judges in our legal system.”

An appeal, to be extra clear, is a court proceeding in which lawyers argue over what happened at the initial trial. At the Supreme Court, accused persons, plaintiffs and whatever other witnesses don’t take the stand. The most important work takes place on the pages of the parties’ written arguments, which are further dissected during oral hearings, which involve long discussions about very specific, disputed legal concepts.

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In Parliament, Liberals make it sound like resorting to an interpreter to hear these disputes is a great injustice. But really, being able to hear the Robed Nine grilling your lawyer without interpretation doesn’t make any practical difference to you. The main people who stand to benefit, really, are McGill University law grads and Laurentian lawyers.

In a perfect world, everyone would be able to speak English and French to the point of being capable of arguing over the nuances of, say, the law of corporate mergers. But we can’t. It’s not practical, and it’s not fair. Most of the country doesn’t have the privilege of growing up in a bilingual area, and most law schools aren’t even bilingual in the first place. Monolingual judges can study French, sure, but most will never be able master the language to the necessary degree unless they can immerse themselves; in most places, this isn’t possible.

The other Canadian branches of government understand all this and, quite reasonably, use human teamwork to get over the language barrier. Members of the House of Commons aren’t obligated to speak both official languages; the same goes for the Senate. Translation services are adequate … for now.

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International courts employ that same, supposedly rights-infringing tactic of translation, instead of holding their judges to an impractical, narrow standard.

The Nuremberg trials, for example, engineered a whole system of multiway interpretation to hold Nazis to account post-Second World War. The presiding judges came from the United States, the Soviet Union, France and Great Britain. Some couldn’t even understand each other, so two interpreters sat on-call behind the bench to help them converse. Another bunch of interpreters helped judges understand whatever person was on the stand. This was all fine. Were the Nuremberg trials substandard? Yes, according to Liberal logic.

Liberal logic would also object to the International Criminal Court (ICC), which has six official languages (Arabic, Chinese, English, French, Russian and Spanish) and two “working languages” (English and French). Judges must “have an excellent knowledge of and be fluent in at least one of the working languages of the Court” to be eligible for the bench.

That said, perhaps Canada should consider withdrawing from the agreement that governs the ICC. It’s monolingual-friendly, so it can’t exactly ensure that parties will “see themselves reflected” on the bench, which is what truly matters when it comes to justice.

National Post

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